MALPRACTICE

Medical Negligence and Malpractice

Executive summary

Medical malpractice is the act of negligence by any medical professional. There can be devastating consequences due to the negligence. In the United States, there are hundred of thousand injuries to patients because of the medical malpractice each year. One hundred thousand deaths also occur because of neglect. These numbers are disturbing however, what is more alarming that less than 15% ever file a lawsuit. By taking legal action, a victim can recover compensation for damages suffered. Victims may be able to recover any medical expenses and emotional damages.

Medical negligence (also known as medical malpractice) occurs when the treatment provided by a health service provider (such as a hospital, doctor, dentist, pharmacist, etc.) falls below an acceptable standard. Medicine is a complicated practice and health service providers are not expected to be perfect. Medical treatment is sometimes unsuccessful and injuries can sometimes result but that does not necessarily mean that there has been any negligence. Negligent treatment is that which goes beyond being a simple reasonable mistake or error.

Negligence is a broad category of tort law, and it is basically careless behavior that places an unreasonable risk of injury on another person. Malpractice is the failure of professionals, such as physicians, lawyers, and engineers, to conform to the standards of competence and skill set by their respective professions. In sum, medical malpractice is generally considered to be a special case of negligence, where a medical professional causes unreasonable risk of harm to a patient due to his failure to meet an established standard of care. Medical malpractice suits can be filed against various health professionals and entities, including physicians, dentists, nurses, and hospitals, but this chapter will focus on physicians because they are at the heart of the current tort reform debate.

Medical Negligence and Malpractice

Introduction

The doctor-patient relationship has been defined differently through the years. In the beginning it developed into a 'common calling' which meant doctors practiced medicine as a duty to their patients. Laws were developed to protect patients; therefore doctors used proper care and expert skill. In the past six centuries, medical malpractice has increased, which lead to revision and addition to the law. Liability was introduced along with the 'GIANT of all torts', negligence. Now in today's society, a doctor's duty is to use reasonable care, skill and judgment in the practice of his/her profession and when negligent, take full responsibility.

Analysis

Malpractice is negligence. Negligence is a tort. A tort is a civil wrong; therefore malpractice is a civil wrong. In its simplest terms, malpractice has four essential elements:

1) Duty. Every health care provider assumes a duty when starting consultations, diagnosis, or treatment of a patient. The duty arises from an expressed or implied contract.

2) Breach. For example, if you fail to make a correct diagnosis once you have assumed the duty to do so, you have created a 'breach of duty', due and owing to the patient.

3) Causal Connection. Your failure to correctly diagnose, ('duty' you 'breached') (Law, Sylvia, 2007) the ...